Tag: bursitis

$55,000 Non-Pecuniary Assessment for Chronic Bursitis

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.
In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:
[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.
[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.
[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…
[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.
 

$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).

$50,000 Non-Pecuniary Damages for Shoulder Impingement in ICBC Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for accident related soft tissue injuries and shoulder impingement.
In last week’s case (Dial v. Grewal) the Plaintiff was involved in a 2006 BC motor vehicle collision.   Fault for the crash was admitted focusing the trial on the value of the claim.  The Plaintiff faced some credibility challenges at trial and the Court found that she “exaggerated” some of her testimony about the extent of her symptoms however Associate Chief Justice MacKenzie found that the plaintiff did suffer real injuries including traumatic right shoulder impingement.  In assessing the Plaintiff’s non-pecuniary damages at $50,000 the Court made the following findings:
[4] For the reasons that follow, I find on the evidence as a whole that an appropriate award for non-pecuniary damages is $50,000 for the injuries the plaintiff sustained to her neck and right shoulder, the aggravation of her pre-existing low back condition and headaches, and more minor injuries to her ribs, and dizziness…
[190] The purpose of a non-pecuniary damage award is to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. While each award must be made with reference to the particular facts of the case, other decisions may assist the court in arriving at an award that is fair to both parties: Smaill v. Williams, 2010 BCSC 73 at para. 78…

[194]     The plaintiff relies on the following cases in support of her submission that $80,000 is the appropriate quantum for non-pecuniary damages: Kasic v. Leyh, 2009 BCSC 649;Predinchuk v. Spencer, 2009 BCSC 1396; Thomas v. Bounds, 2009 BCSC 462; and Lee v. Metheral, 2006 BCSC 1841.

[195]     I find, conversely, that these cases support higher awards than is fair in this case because the defendants have no obligation to compensate the plaintiff for symptoms attributable to her pre-accident low back condition.  That said, I find that an award that is just and fair to both parties is $50,000.

[196]     As I have already discussed, the plaintiff’s testimony about her symptoms and pain was at times vague and at others, exaggerated. Nevertheless, I accept that she suffered substantial pain for months after the accident, as is supported by the medical evidence in this case. Her pain gradually improved, and she was able to substitute for her husband at work about 14 to 18 months after the accident, albeit primarily for a few hours at a time but also with a few full-time shifts. By that time, her neck and shoulder pain were manageable. The aggravation of her pre-existing low back condition had also resolved such that her back had returned to its pre-accident condition.

You can click here to access my archived posts of other recent BC Court cases awarding non-pecuniary damages for shoulder injuries.

$75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

OK, I’m back in Kelowna, but this time more for pleasure than business, so this case summary will be a little light on the usual details.
Reasons for judgement were relesed today finding a motorist at fault for a 2003 impact with a cyclist. The Plaintiff suffered serious injuries and was awarded close to $500,000 in compensation for his losses and injuries.
In this case the cyclist was travelling on the side-walk. This is prohibited in law but simply violating the motor vehicle act does not automatically make one negligent for an accident. In this case the court found that while the cyclist was unlawfully riding on the sidewalk, he was not responsible for the accident because this did not cause the accident, rather
the accident was caused by (the Defendant) either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle.”
Here the court found that the Plaintiff was a credible witness that did not exaggerate his symptoms. The injuries were summarized by the Plaintiff’s treating family physician as follows:
fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).
In other words, a very serious ankle injury.  Evidence was also led that the Plaintiff suffered from a Mild Traumatic Brain Injury (MTBI) and that this resulted in some on-going cognitive problems.
The Plaintiff was a young man who suffered from a significant period of disability and there was evidence of some permanent partial disability.
Damages were assessed as follows:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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